Default judgment where demand unliquidated (Form 33)

Under Order 13 rule 3 of the Rules of the Supreme Court 1971 (WA), applied in the District Court by rule 6 of the District Court Rules 2005, if a writ claims unliquidated damages only and the defendant does not enter an appearance in time, the plaintiff may enter judgment against that defendant and obtain an order for directions for the assessment of damages. Damages are assessed by a master unless the Court orders otherwise, and the judgment after assessment is entered as a default judgment (O 13 r 3(2)), using Form 35. For a claim relating to the detention of goods, O 13 r 4 allows judgment for the value of the goods to be assessed. Form 33 is the prescribed form (O 42 r 1(2)) and includes the notice to the defendant required by O 13 r 12.

When you need it

• Your action was started by writ claiming damages that have to be worked out (for example personal injury, negligence or breach of contract damages), not a fixed sum.
• The defendant has not entered an appearance within the time stated on the writ.
• You can prove service by affidavit, with the writ indorsed with the service details within 3 days (O 13 r 1(3); O 9 r 1(4)).
• Use Form 32 instead if the claim is for a fixed debt only, and Form 35 once the damages have been assessed.

1. 1

   Complete the heading

   Insert the action number and year, and replace 'AB' and 'CD' with the parties' names.

2. 2

   Choose the order wording

   The order is that the defendant pay the plaintiff the value of the goods, or damages, or both, to be assessed. Keep the words that match what the writ claims and delete the rest.

3. 3

   Keep the notice to defendant

   The notice tells the defendant they can apply to set aside or vary the judgment under O 13 r 14, and warns of the risk of costs. Insert the plaintiff's name where shown. O 13 r 12 requires this statement.

4. 4

   Fill in the contact details

   Give the plaintiff's law firm, contact person, phone and email. If you are self-represented, adapt the section to give your own details.

• Lodge Form 33 with the affidavit of service. Lawyers eLodge through the ECMS; self-represented parties who are not registered users may email districtcourt@justice.wa.gov.au or lodge at the registry (PNC 1.2.1).
• Serve the judgment personally on the defendant as soon as practicable after it is entered (O 13 r 13).
• The amount is then assessed at a later hearing. The Court's guide says there will need to be a hearing to assess damages. When the amount is certified, prepare the final judgment in Form 35.

• This judgment settles liability but not the amount. You cannot enforce a money sum until damages are assessed and the Form 35 judgment is entered.
• If the writ also includes a liquidated claim or another type of claim, check O 13 rr 8 and 9 for what judgment you can enter on each part.